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Case 22-1426, Document 77, 06/29/2023, 3536038, Page194 of 258
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 192 of 348

entitled to significant weight, and OPR credits them. OPR finds, therefore, that the emails in
question do not themselves establish that Villafaña (or any other subject) acted to improperly
benefit Epstein, was motivated by favoritism or other improper influences, or sought to silence
victims.

G. The Evidence Does Not Establish That Acosta, Lourie, or Villafaña Agreed to
the NPA’s Provision Promising Not to Prosecute “Potential Co-conspirators”
in Order to Protect Any of Epstein’s Political, Celebrity, or Other Influential
Associates

OPR examined the decision by the subjects who negotiated the NPA—Villafaña, Lourie,
and Acosta—to include in the agreement a provision in which the USAO agreed not to prosecute
“any potential co-conspirators of Epstein,” in addition to four named individuals, to determine
whether that provision resulted from the subjects’ improper favoritism towards Epstein or an
improper effort to shield from prosecution any of Epstein’s known associates. Other than various
drafts of the NPA and of a federal plea agreement, OPR found little in the contemporaneous
records mentioning the provision and nothing indicating that the subjects discussed or debated it—
or even gave it much consideration. Drafts of the NPA and of the federal plea agreement show
that the final broad language promising not to prosecute “any potential co-conspirators of Epstein”
evolved from a more narrow provision sought by the defense. The provision expanded as Villafaña
and defense counsel exchanged drafts of, first, a proposed federal plea agreement and, then, of the
NPA, with apparently little analysis and no substantive discussion within the USAO about the
provision.237

As the NPA drafting process concluded, Villafaña circulated to Lourie and another
supervisor a draft that contained the non-prosecution provision, telling Lourie it was “some of
[defense counsel’s] requested language regarding promises not to prosecute other people,” and
commenting only, “I don’t think it hurts us.” In a reply email, Lourie responded to another issue

237 As set forth in OPR’s factual discussion, early in the negotiations over a federal plea agreement, the defense
sought a non-prosecution provision applicable to only four female named assistants of Epstein and to unnamed
employees of one of his companies. Villafaña initially countered with “standard language” referring to unnamed
“co-conspirators” so as to avoid “highlight[ing] for the judge all of the other crimes and all of the other persons that
we could charge.” Nonetheless, drafts of the NPA sent by Lefkowitz after Villafaña’s email continued to include
language referring to the four named assistants and unnamed employees. Villafaña, however, internally circulated
drafts of a federal plea agreement that included language stating, “This agreement resolves the federal criminal liability
of the defendant and any co-conspirators in the Southern District of Florida growing out of any criminal conduct by
those persons known to the [USAO] as of the date of this plea agreement.” The federal plea agreement draft revised
by Lourie and Acosta on September 20, 2007, included that language. When the defense team reverted to negotiation
of state charges, Villafaña advised them, “In the context of a non-prosecution agreement, the [USAO] may be more
willing to be specific about not pursuing charges against others.” The next day, Lefkowitz sent a revised draft NPA
referring to the four named assistants, “any employee” of the named company, and “any unnamed co-conspirators for
any criminal charge that arises out of the ongoing federal investigation.” The language was finally revised by Villafaña
to prohibit prosecution of “any potential co-conspirators of Epstein, including but not limited to [the four named
assistants].”

In commenting on OPR’s draft report, Villafaña’s counsel and Lourie both noted that the non-prosecution
provision could bind only the USAO, and Lourie further opined that it was limited to certain specified federal charges
and a time-limited scope of conduct. Although the non-prosecution provision in the NPA did not explicitly contain
such limitations, those limitations were included in other parts of the agreement.

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